Recently, I came across two cases that show, by contrast, how experts should and should not deal with each other when retained to assist in litigation.

In the first, Trebor Bassett Holdings Ltd & Anor v ADT Fire and Security Plc [2011] EWHC 1936 (TCC) (22 July 2011), Mr Justice Coulson, as he then was, outlined a list of failures by the expert witnesses, including a failure to comply with directions. At one stage, he described the evidence as ‘slapdash’, and he was not impressed by the failure of the experts to meet in a professional manner:

Moreover, it appears that there were difficulties with the conduct of the experts’ meetings. Of course, since those meetings were without prejudice, it is impossible for me to say why that was. I was merely told that the experts “fell out” and that, as a result, no r35.12 statement was prepared. Bluntly, I have to say that experts appointed in civil litigation have no business to “fall out” and to fail to comply with the orders of the court. Experts are there to provide evidence on technical matters in order to assist the court, and for no other purpose. If they take matters of personal disagreement to such a level, they are failing to provide that service.”

Later, he commented:

[T]he court has had to struggle with unsatisfactory and disparate expert evidence, often unrelated to the real issues, prepared and delivered in a variety of places and in an unacceptably partisan way. Unsurprisingly, perhaps, this has created real difficulties in the preparation of parts of this Judgment. It has also led me, very unusually, to be dubious about the reliability of all of the expert evidence that has been presented to me. This is emphatically not a case where the court is able to prefer one expert over another and let that approach dictate the result.”

By contrast, the case of Failes v Oxford University Hospitals NHS Trust [2020] EWHC 3333 (QB) (04 December 2020) shows how experts should behave. A quotation from His Honour Judge Cotter QC should suffice:

I heard from Mr Todd (a neurosurgeon instructed on behalf of the Claimant) and Mr Mannion (a neurosurgeon instructed on behalf of the Defendant). Both are hugely experienced clinicians and expert witnesses. There was very little between the respective views and the joint statement was a model of clarity and cooperation.”

Expert witnesses have long been required to co-operate with each other to ‘narrow down’ the issues between them. If fail to do so, it can add considerably to the time and expense of resolving the case they are retained to assist with.